Donziger Lawyer Says She's Fighting Corporate Litigation Playbook
On a conference call with reporters on Friday, the veteran mass torts plaintiffs lawyer Zoe Littlepage offered an explanation for her eleventh-hour decision to defend attorney Steven Donziger against claims that he orchestrated a titanic fraud against Chevron Corporation in the Ecuadorian Amazon. The reason she accepted the case, Littlepage said, was to address a "new and alarming trial strategy" of big corporate defendants going after the plaintiffs lawyers who sue them instead of defending their actions on the merits.
It's an interesting statement.
From one perspective, if Littlepage really intends to make a symbolic stand for the plaintiffs bar, it's hard to think of a worse vehicle than Chevron's case against Donziger, which goes to trial on Tuesday. Chevron hasn't just accused Donziger and his allies of cooking up an illegitimate $19 billion environmental judgment in the Ecuadorian courts. The oil giant has already convinced the U.S. judge hearing its fraud and racketeering claims that the defendants probably had a role in judicial bribery, ghostwriting a key expert's report, and ghostwriting the mega-judgment itself. As Littlepage acknowledged on Friday, Donziger's odds of victory in the upcoming Manhattan trial appear less than slim, especially with a legal team that's had frighteningly little time to prepare.
On the other hand, Littlepage said that when she took the case three weeks ago she strongly believed — incorrectly as it turned out — that Chevron would never drop its damages claims against Donziger and opt for a bench trial. A jury trial, she suggested, would have offered "an even playing field" and a real opportunity to "tell the story" of Chevron's alleged environmental depredations in the Amazon. Without a jury, Littlepage said Donziger will have to pin his hopes for "a fair forum" on the U.S. Court of Appeals for the Second Circuit.
It's also true, wherever you stand on Donziger's guilt or Chevron's environmental record, that the case against Donziger is a prime example of big business defendants turning their accusers into the accused. Indeed, Chevron's lawyers at Gibson, Dunn & Crutcher were chosen for the job in large part because of their wild success at discrediting plaintiffs lawyers who won millions from Dole Food Company related to Dole's treatment of Nicaraguan banana farmers.
Gibson Dunn has gone on to turn the tables on Paul Ceglia, the now-indicted businessman who claimed to own half of Facebook, and on lawyers suing the for-profit education company ITT Educational Services Inc., among others. Are Gibson Dunn and other firms getting more adept at ferreting out fraudsters? Are they sometimes too aggressive in pointing fingers at plaintiffs lawyers, as the U.S. Court of Appeals for the Seventh Circuit recently suggested in the ITT case? Those are both good questions, but it's not clear that Littlepage will be able to reveal any answers in the Chevron case.
Given Littlepage's insistence that she signed up for the case expecting a jury trial, it would be hard to blame her if she felt some buyer's remorse. To add to her troubles, U.S. District Judge Lewis Kaplan levied sanctions on Thursday that could significantly curtail Donziger's defense. Thankfully for trial groupies like us, Littlepage sounded Friday like she's still itching to fight.